The American Dream Is For Everyone

By Cyrus D. Mehta & Sophia Genovese

The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They were granted authorization to remain in the United States under an Obama-era program known as Consideration of Deferred Action for Childhood Arrivals (DACA). The Trump White House has stated that they are willing to provide a pathway to citizenship for Dreamers in exchange for fewer family-based immigration categories, the elimination of the Diversity Visa Program, and $25 million in funding for the infamous wall. President Trump had previously cancelled DACA on September 5, 2017.

DACA recipients have strongly opposed the White House’s proposal, arguing that they refuse to benefit from a bill that will disrupt the lives of millions. A pathway to citizenship for Dreamers is desperately needed, but even Dreamers realize that they’re not the only ones whose lives remain in the balance. H-4 spouses are set to lose their ability to work, and H-4 dependents could age out if their parent continues to be stuck in the employment-based backlogs. TPS recipients are being forced to return to countries where poverty and violence remain the norm. Foreign nationals of banned countries anxiously await the ability to come to the US and join their families or begin working in their fields. Foreign students nearing graduation fear the H-1B lottery cap and USCIS’s increased scrutiny of level one wages and IT-related positions. Skilled workers from India and China stuck in the backlogs recently feared being sent back home while they await their green cards. Although this proposal has been pulled back, the fact that it was made heightens the fragility of an immigration system that keeps skilled workers waiting for decades on end because of the unavailability of immigrant visas. Undocumented populations are increasingly fearful of the lack of ICE enforcement priorities and the increased number of non-criminal immigrants being arrested on buses, at schools, or courthouses. Although Dreamers stand to gain from the White House proposal, they do not, in good conscience, accept the trade-offs. At the same time, it would be perfectly understandable if a DACA recipient wanted to accept the Trump Administration’s deal so long as it would benefit her. It is natural for each group of immigrants to want to get their own benefit without regards to whether the enactment of legislation would improve the immigration system as a whole. However tempting this might be, it would clearly be in the interest of all immigrants, including Dreamers, if they united and steadfastly demand an immigration deal that fixes the immigration system to help everyone, which in turn benefits the national interest. Otherwise, what may seem to benefit you but hurt others, will come back to also ultimately hurt you.

The Trump Administration’s proposal is cruel and nothing short of xenophobic. While fixing DACA is urgently needed, such a fix will not resolve all the other problems in the immigration system. It is not worth getting a fix for DACA, without other urgently needed fixes, in exchange for immigration restrictions that would fulfill the wish list of a nativist. America has nothing to gain, and much to lose, from such a limited immigration policy. We have repeatedly argued that immigration is a net positive for the economy and society. Immigrants keep America competitive in STEM fields and other industries. Closing the doors to talented immigrants will undoubtedly make the US less competitive globally.

In stark contrast to the Trump Administration’s xenophobic wish-list is the Immigration Innovation (“I-Squared”) Act of 2018, introduced by two Republican Senators, Orrin Hatch (R-UT) and Jeff Flake (R-AZ). The bill would increase the H-1B visas from 65,000 to 85,000 a year and proposes lifting the existing cap of 20,000 additional H-1B visas reserved for those with master’s degrees if their employers agree to sponsor their green cards. The bill includes a “market-based escalator” so the supply can meet increased demand. That means granting up to 110,000 additional visas (a total of 195,000), and prioritizing visas for those with master’s degrees, foreign Ph.D.’s or U.S. STEM bachelor degrees. The bill would also eliminate per-country caps on employment-based green cards and allow H-4 visa holders the ability to work. It will also not count derivative family members, which if implemented upon enactment, will quickly drain the decades long backlogs in the employment-based preferences. The bill does not address Dreamers, but rather focuses on employment-based visas. Although imperfect, the bill serves as a proper starting point when discussing sensible immigration policy. Specifically, the bill acknowledges the utility and benefit of foreign skilled workers, especially in the IT field. Hatch and Flake have both realized that these workers not only benefit US industries, but also help create jobs for American workers. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The people who run immigration policy in the Trump administration care about American workers but do not effectively express such concern. Instead, they have created policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. I-Squared does provide the opening salvo. This bill has all the right ingredients – elimination of per country limits, not counting derivative family members that have till now clogged up the employment-based preferences and increasing the H-1B visa cap. We need I-Squared as much as a fix for DACA recipients.

Congresswomen and men need to similarly create a comprehensive bill that provides a pathway to citizenship for Dreamers without throwing other immigrant populations under the bus. Even requiring Dreamers – who only know America as their country – to wait 10-12 years on a probationary basis before they can apply for permanent residence and citizenship is unnecessary and cruel. Although Dreamers are under no obligation to prove their worth, as their humanity alone entitles them to respect, we nevertheless see DACA recipients thriving in the respective fields and substantially benefiting the United States. The proposed legislation should also not undermine family immigration since family unification has been the cornerstone of US immigration policy since its inception. Family members of the principal immigrant support each other, and thus create more stability and bring about more prosperity. It is also not necessarily the case that a skilled immigrant in a STEM field will only benefit the United States. The nation’s immigration history is replete with examples of immigrants from all walks of life succeeding in the country through their hard work, grit and determination. Objecting to family-based migration, including cutting off the ability of a US citizen to sponsor a parent, means that you are advocating a total shut-down of immigration and the cruel separation of families. It is also immoral to do so.

With the exception of descendants of indigenous peoples, every American is a descendant of immigrants. Everyone’s mother, grandmother, great-grandmother, etc. came to the United States from a foreign land in the hopes of creating a better life. The American Dream is for everyone, whether your family has been here for generations or if your family just arrived yesterday. It is senseless to close the doors to immigrants seeking opportunity in a nation whose identity is intimately intertwined with migration.


There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.





Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism

By Cyrus D. Mehta & Sophia Genovese

Despite the President’s most recent comments, individuals that immigrate to the United States via the Diversity Visa program and family-based petitions are not chosen out of a bin and are certainly not the “worst of the worst.” To the contrary, individuals who come to the United States through these mechanisms undergo rigorous screenings and can face several years, sometimes decades, of processing and waiting.

Trump’s most recent anti-immigration comments were sparked by the Halloween attack in New York City resulting in the tragic death of eight individuals, as well as the failed bomb attack in Times Square last week. The alleged Halloween attacker, Sayfullo Saipov, entered through the Diversity Visa program in 2010. Ceasing this political opportunity to further propel his anti-immigrant rhetoric, Trump declared that the Diversity Visa program brings in “the worst of the worst” and called on Congress to end the program. The individual who attempted to bomb the New York City subway at Times Square, Akayed Ullah, had entered through a fourth preference family-based petition. He was the child of the beneficiary of an approved I-130 petition filed by his parent’s US citizen sibling. Trump again jumped on the opportunity to criticize another lawful method of immigration and declared that such “extended-family chain migration” is “incompatible with national security.”

Given the backlogs in family-based preference categories and the rigorous screenings in both family-based petitions and the Diversity Visa program, it is difficult to understand how the President believes they are easily manipulated processes for dangerous individuals to enter the United States. Logically speaking, if someone truly wanted to exert harm on Americans, there are several other ways to do so without having to go through the hassle of the diversity visa program or family-based petitions.

The modern-day Diversity Visa program was created by Congress through passage of the Immigration Act of 1990 and officially went into effect October 1, 1994. The purpose of the program is to “further enhance and promote diversity” by allowing individuals from countries with low rates of immigration to the United States the opportunity to obtain a green card. There have been many examples of immigrants who have succeeded and benefitted America through this program. In order to apply for the program, an individual must be from a low-sending country and have a high-school education or its equivalent. For FY 2019, individuals from every country but Bangladesh, Brazil, Canada, China (mainland), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Kora, the United Kingdom, and Vietnam are eligible to apply. If applicants fail to submit their registration within the rigid timelines, fail to meet the requirements explained above (i.e. do not possess a high-school education or its equivalent), or generally fail to follow the instructions in the application carefully, they will immediately be disqualified from consideration. Even being one of the nearly 100,000 individuals initially selected in the lottery is not a guarantee for admission, especially if the applicant has triggered one of the many grounds of inadmissibility in the Immigration and Nationality Act. Instead, lottery winners undergo rigorous background checks and interviews, all of which must be completed within a strict timeframe.

There was a time in our history where immigrants came to the country without being subjected to rigorous selection criteria, and only with a dream of starting a new life and doing well through sheer determination and hard work. This was America’s secret sauce – its ability to attract and assimilate people regardless of their status in society and only with a burning desire to succeed. The Diversity Visa program is redolent of America’s past, which still gives anyone who can qualify subject to rigorous screening – whether from Scandinavia or sub-Saharan Africa – a chance to dream, work hard and succeed in America.

Similarly, individuals seeking to immigrate through family-based petitions face crippling backlogs, in addition to the comprehensive security screenings prior to entering the United States. For many of these families, the process of immigrating to the United States can take upwards of several years or even decades. For example, if a US citizen originally from Mexico filed an I-130 on behalf of their married son or daughter, their child can expect to wait at least another 21 years, if not longer, before they can apply for their immigrant visas. And even once their priority date becomes current, there is no guarantee that a consular officer will find them admissible for entry into the United States. It has now become fashionable, even by the likes of USCIS Director Francis Cessna, to criticize so called chain migration as not being desirable and providing a conduit for immigrants to come to the United States to do harm. But this is just subterfuge by immigration restrictionists to curtail family-based immigration in exchange for the proposed RAISE Act. Although the RAISE Act purportedly promotes merit based immigration through a points system, it will keep out most, even many highly skilled individuals, and it is thus no wonder that mostly xenophobes have welcomed it so far.

Chain migration is not a legal term, it is a political term, which is conveniently bandied around by those who oppose immigration, including Trump appointed officials like the USCIS Director who should be objectively administering the law rather than infecting it with Trump’s and his own personal biases. For any rational immigration system to work, minor children of the sponsored person, whether through employment or family-based immigration, along with the spouse, must also be let in. If only the principal beneficiary is admitted on a permanent basis, no one will ever want to immigrate to the United States. While this may be the dream of xenophobes, to deny spouses and children of the sponsored immigrant to get green cards would be cruel and create an unworkable system. The honest xenophobic politician or government official should just advocate shutting down immigration altogether rather than hypocritically espouse it, but only object to chain migration. Objecting to chain migration means that you are advocating a total shut down of immigration. Moreover, every foreign national who has been admitted into the United States as a permanent resident can ultimately naturalize provided they meet the eligibility criteria. A citizen, whether naturalized or born in the United States, should be able to sponsor family members. If there was a sub-class of citizens who could not under law sponsor relatives out of fear that it would foster chain migration, there would be two tiers of citizens in America. This would go against the values of this country that treats all its citizens equally and gives them equal opportunities in all spheres of life. Worse still, it would Balkanize America. The second-class citizens would not feel integrated and assimilated into the fabric of the country. America has succeeded brilliantly and has become great because all citizens are considered Americans no matter who their parents are or where they came from.

An individual with a vendetta against the United States and seeking to exert harm on Americans is not going to go through the pain of such a process. Putting logic aside, as this Administration has done from the start, Trump has nevertheless deemed these methods of lawful entry to be incompatible with national security and avenues through which terrorists are able to sneak in. Immigration, through the chain migration bogeyman, has unfortunately become a focal point of this Administration’s racist and xenophobic rhetoric. They have and will continue to cling on to any and all violent acts committed by immigrants and use it as justification to severely limit immigration to the United States, despite the fact that immigrants are less likely to commit violent crimes than native born Americans.

Ascribing an entire population for the acts of an isolated few, who likely became radicalized in the United States long after their initial admission as immigrants, is ludicrous. Even a native born US citizen can become radicalized. Indeed, we do not see outrage against white American men every time a native-born white male shoots up a school, church, movie theater, concert, or literally any other venue imaginable. Nor have we seen substantive gun reform in an era of alarmingly high rates of deadly shootings. But yet, on the rare occasion that an immigrant does commit a crime, suddenly all immigrants have to answer for it and any avenue through which the violent individual entered the United States is criticized.   While there is clearly a logical nexus between a gun and a person’s evil intent, it is hard to find such a similar nexus with a person’s propensity to do harm and congressionally mandated visa programs. This is another one of Trump’s many hoaxes. Recall the one when he claimed that he would have won the popular vote against Clinton had 3 million illegal voters not voted in her favor.

Simply closing the door to all immigrants because a few individuals committed crimes will do nothing but hurt America in the long run. We have provided exhaustive evidence throughout our blogs describing the various ways in which immigrants have benefited the United States. Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with limited skills contemplated under the RAISE Act will. It is unclear why we have to continue justifying immigration in the face of such clear evidence. The solution will ultimately lie at the ballot box. Trump repeatedly criticized Ralph Northam in Virginia and Doug Jones in Alabama for being weak on the border and not supporting his wall. Yet, both defeated the candidates that Trump repeatedly promoted on Twitter as being tough on illegal immigration and supporting the wall. Scapegoating immigrants for electoral advantage may have succeeded once for Trump, but might not every time. The tide will turn as people realize that America’s greatness is being diminished if it no longer has access to its secret sauce.

Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop

Kate Steinle’s death was a senseless tragedy. On July 1, 2015, as she was walking along San Francisco’s Pier 14, a gun goes off and cuts her life short. She died in her father’s arms.

The accused, Jose Ines Garcia Zarate, is an undocumented Mexican immigrant who had been deported five times before, and each time, has illegally come back into the United States. He was charged with murder and manslaughter, but the jury recently acquitted him of the charges. His acquittal has inflamed President Trump who calls the verdict a travesty of justice. He uses the acquittal as another reason to build the wall. If Mr. Garcia Zarate did not cross the border illegally, Kate would still be alive today, Trump and his supporters argue.

But Mr. Garcia Zarate’s immigration status was not relevant. In the criminal justice system, the twelve jurors were asked to look at the facts and deliberated hard for six days. The key issue was whether the defendant intentionally killed the victim? Immigration status was not part of the jury’s deliberations and should not have been, however much Trump and his supporters may insist. Evidence was presented in the trial that the bullet had ricocheted before killing Ms. Steinle. The jury determined that  Mr. Garcia Zarate did not intentionally kill her.  Mr. Garcia Zarate was nevertheless convicted for felony possession of a weapon and will face prison time. After he completes his sentence, Mr. Garcia Zarate will presumably be deported to Mexico for the sixth time.

In order to have a fair criminal trial, which the United States ensures for all defendants, immigration status should never be relevant and thus not admissible evidence. The only question in court was whether the defendant intentionally fired the gun. As the facts were presented, Mr. Garcia Zarate, a homeless immigrant living in the country illegally, unwrapped a cloth object under a bench on a San Francisco pier. Inside the cloth was a gun that had been stolen days before.  During the presidential campaign, Trump exploited Kate’s unfortunate death to conflate immigrants with criminals, foment hate, inspire a mass deportation program and to catapult him into the presidency. Trump continues to rage and exploit Ms. Steinle’s unfortunate death to further his anti-immigration policies. He says this in a recent tweet:

The Kate Steinle killer came back and back over the weakly protected Obama border, always committing crimes and being violent, and yet this info was not used in court. His exoneration is a complete travesty of justice. BUILD THE WALL!

Mr. Garcia Zarate may have been an undocumented person who illegally crossed the border many times. But that fact would not have changed the outcome as Mr. Garcia Zarate’s border crossings in violation of law were not the proximate cause of Ms. Steinle’s death. If Mr. Garcia Zarate had not picked up the gun at that fateful moment, and if another homeless person born in the United States picked up the same gun, Ms. Steinle may have still been killed. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. The criminal justice system can fairly deal with people accused of crimes, whether they may be immigrants or US citizens.

To be clear, Mr. Garcia Zarate is no model immigrant. He is not a Dreamer or a STEM graduate. Still, he got a fair trial in our criminal justice system even though he was unable to afford fancy lawyers. Most immigrants, however, are hardworking and honest, trying to make better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. It is irresponsible to use this tragic incident to scapegoat all immigrants or to drum up support for mass deportations of millions of people. It would also not be in keeping with Ms. Steinle’s memory if her death results in hate and misery fomented by white nationalist groups.

Ms. Steinle’s death was also used as a basis for the Trump administration to oppose sanctuary jurisdictions. Mr. Garcia Zarate had completed a nearly four-year federal prison sentence for illegally reentering the country. He was turned over to San Francisco law enforcement officials because of an outstanding warrant for a marijuana-related charge that was immediately dismissed. Local officials released him, despite a request from federal authorities to keep him in custody because of his immigration status, according to a wrongful-death lawsuit filed by Steinle’s family. The Trump administration issued an executive order in January 2017 to articulate its broadened enforcement policy against undocumented immigrants, which among other things sought to  block federal funds from “sanctuary jurisdictions.”

The January executive order stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” The executive order said, among other things, that the policy of the executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration’s executive order issued in January 2017 to block federal funds from “sanctuary jurisdictions.”  The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment’s Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.

The federal government responded that the counties could not demonstrate that the executive order’s sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution’s separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.

The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General “erased it with their public comments.” The court noted that the President has called the order “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded, the court noted.

The court said that the Constitution vests spending powers in Congress, not the President, so the executive order “cannot constitutionally place new conditions on federal funds.” Further, the court noted, the Tenth Amendment “requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.” Federal funding that bears no meaningful relationship to immigration enforcement “cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.

Despite the injunction, and following the acquittal verdict in the Stienle case, anti-immigrant rhetoric equating immigrants with criminals continues to intensify as the Administration ramps up its deportation force, doubles down on cruel deportation tactics, and attacks policies put in place by local police and sheriffs to keep their communities safe. The hateful rhetoric must stop. Entangling local law enforcement with deportations undermines trust and safety.  Local law enforcement has repeatedly come out in favor of so-called “sanctuary” policies, not the least because honoring detainers issued by ICE has led to counties being liable when courts have found that a person’s constitutional rights under the Fourth Amendment were abridged when someone was detained without a judicial warrant or court order. When immigrants come to view their local police and sheriffs with distrust because they fear deportation, it encourages criminals to prey upon victims and witnesses alike. Victims of domestic and other violence choose to suffer in silence rather than seek assistance; key witnesses of crime refuse to come forward out of fear that they themselves will be treated as a criminal; and a climate of fear grips entire neighborhoods. Regardless of the passions generated in the Steinle case, cities and localities need to make pragmatic, rational choices about how to best make and keep their city/locality safe. The decision to disentangle local policing from immigration enforcement promotes community trust and the federal government should not interfere with this local policy making. Indeed, such a disentanglement will be more effective in preventing crime.

America has been a nation of immigrants since its inception over 240 years ago, while it has been just over a year since ugly anti-immigration sentiment has been unleashed through Trump’s rise. Over these two centuries, there has also been a recognition that those who are accused of crimes face a fair trial in the United States regardless of where they come from or their immigration status. It is hoped that these bedrock principles grounded in the nation’s history and character will withstand the xenophobic stirrings of the moment.

The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests

The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds.

Continuing to rub salt in the wound, the USCIS issued a Policy Memorandum dated October 23, 2017 that rescinds its prior guidance of deferring to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. Despite the deference policy, there were broad exceptions under which it would not apply if it was 1) determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there was new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

The new Policy Memorandum in rescinding the prior policy instructs adjudicators with respect to extension requests to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The Policy Memorandum further reminds that the burden of proof in establishing eligibility is, at all times, on the petitioner under INA § 291 and criticizes the former deference policy for “appear[ing] to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.” The Policy Memorandum also vaguely notes that “[the prior policy] was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

The Policy Memorandum also rescinds a similar deference policy that was set forth in the USCIS L-1B Policy Guidance of 2015 with respect to L-1B extensions.  Under that policy too, adjudicators were reminded to defer to prior L-1B adjudications, unless the exceptions applied. This aspect of the L-1B Guidance is no longer applicable. The Policy Memorandum does not affect the deference given to prior favorable adjudications in the EB-5 program, as described in the EB-5 Policy Memorandum of 2013.

On the one hand, the Policy Memorandum rescinding deference does not change much as the USCIS was in any event not giving deference to prior approvals. The exceptions in deferring to prior approvals were broad. It was routine for an adjudicator to invoke that there may have been a material error in approving the prior petition, or there was a substantial change in circumstances, or that there was new material information that substantially impacted eligibility. It has always been the practice of most petitioners filing extension petitions, and the attorneys who represent them, to not take for granted that the USCIS adjudicator would give deference to the prior approval. Therefore, it has always been a best practice to provide substantial supporting information and evidence at the time of filing an extension as if it was being filed for the first time.

Still, on the other hand, the Policy Memorandum will incentivize adjudicators to issue unnecessary Requests for Evidence (RFE) that will not just cause uncertainty to petitioning employers but will cause havoc in the lives of foreign nationals. Many of these RFEs will likely be preludes to denials of extension requests on behalf of foreign nationals who have been living in the United States for many years, and were used to getting approvals on extension requests. The USCIS has been reading out entire occupations from the H-1B law that would have otherwise been easily approvable. The USCIS relies on the description of the occupation in the Occupational Outlook Handbook (OOH) to justify its denials. For example, with respect to Computer Systems Analysts, the OOH states that a “bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.” The USCIS has often used this as a justification to deny an H-1B petition filed on behalf of a Computer Systems Analyst, and now that the deference policy no longer exits, will be used even if the USCIS had previously approved the H-1B petition on behalf of the Computer Systems Analyst.

There are foreign nationals who have been patiently waiting for permanent residency for several years due to backlogs in the employment second and third preferences. They may be applying for yet another H-1B extension beyond the sixth year (and in many instances, this may either be their 10th or 12th year in H-1B status), and they risk the prospect of the USCIS suddenly pulling out the rug from under their feet. In prior years, many entrepreneurs received H-1B or O-1A/1B approvals through their own startups based on guidance in what used to be a very informative Entrepreneur Pathways Portal.  To this author’s dismay, that portal has been replaced with  basic plain vanilla information about different visas. Gone out of existence is the thoughtful guidance for entrepreneurs on how they can legitimately use H-1B, L-1 or O visas. Since an adjudicator need not pay deference to the earlier approval, and since the guidance on entrepreneurs no longer exists, extensions requests of a startup on behalf of its founder may also be subject to additional scrutiny and thus greater peril.

It is no coincidence that the Policy Memorandum was issued shortly after Francis Cissna was confirmed as USCIS Director on October 8, 2017. Although Mr. Cissna is highly experienced, having worked in various capacities within the DHS from 2005 until 2017, he was also detailed by the DHS to the Senate Judiciary Committee, specifically to the office of Chairman Chuck Grassley, R-Iowa, where he spent two years, from 2015 to 2017. It was during this time that Grassley wrote critical letters to the agency on immigration issues, many of which were authored by Mr. Cissna. Mr. Cissna also assisted the Trump presidential campaign on immigration issues. Trump’s stance against both legal and undocumented immigration as taking away American jobs is well known. This is now being translated into action on behalf of the president by people like Mr. Cissna and Steve Miller. The anti-immigrant movement, like the evil Galactic Empire in the Star War movie series, has struck back hard. The Policy Memorandum rescinding deference resembles one of those devastating attacks against good people ordered by Darth Vader on behalf of the Empire.

The prior deference policy was good policy as it was in harmony with regulations that clearly instruct that in extension H-1B, O-1, L-1 and P petitions, petitioners need not submit the same supporting evidence as they did when filing the new petition.

8 CFR § 214.2(h)(14), with respect to H-1B extensions, provides:

(14) Extension of visa petition validity. The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

The same language indicating that supporting evidence is not required exists with respect to L visa extensions at 8 CFR 214.2(l)(14)(i); O extensions at 8 CFR 214.2(o)(11) and P extensions at 8 CFR 214.2(p)(13).

The Policy Memorandum acknowledges the existence of these regulations, and tries to clumsily skirt around them by instructing adjudicators as follows:

However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.

There is clearly tension between the Policy Memorandum and the regulations that do not require supporting evidence when filing extension petitions through the same employer. If a petitioner does not need to file any initial evidence, and the adjudicator is giving no deference to prior adjudications, how will adjudicators know what to do? Will they simply request an RFE in every case? Is that really consistent with a regulation explicitly stating that you do not need to file any evidence unless requested?  This could provide a legal basis to challenge the Policy Memorandum in federal court as violating the regulations that explicitly do not require supporting evidence. The regulations have more legal force than the Policy Memorandum, which appears to be rescinding the regulations. If petitioners who file routine extensions are faced with a blizzard of RFEs that ultimately lead to denials, they should challenge the Policy Memorandum in federal court.

The Policy Memorandum also states that it is consistent with the “agency’s current priorities and also advances policies that protect the interests of U.S. workers.” These priorities did not exist when the initial petition was approved. Like all the other restrictive polices implemented under the Trump administration, the rescission of the deference policy is to further Trump’s Buy American Hire American (BAHA) Executive Order. The BAHA Executive Order was also not in existence when Congress created the H-B, L, E, O or P visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa  was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Even with respect to H-1B visas, Congress specifically required employers to make attestations with relating to wages with the Department of Labor, but they were not required to conduct recruitment of US workers unless they were H-1B dependent employers who did not have exempt workers. Therefore, if Congress desired the same purpose as enshrined in the BAHA Executive Order for the L, the H-1B (at least for non-dependent employers who do not have exempt employees), O or P visa, as it did for the H-2B visa, it would have said so. It is inconsistent not just with the regulations, but with the provisions in the INA to rescind deference because the USCIS wishes to adjudicate extension petitions consistent with BAHA.

This provides a further basis to challenge the Policy Memorandum in federal court, in addition to contradicting the above stated regulations, if it leads to denials of extension requests that were previously readily approved. The new Policy Memorandum appears to insist on deference to BAHA over a prior approval under the INA, which stems from Trump’s America First campaign slogan. BAHA deserves no deference as it is nativism in another name and has also been linked to Anti-Semitism in America’s not too distant past. Adjudicators must faithfully implement the plain meaning of the provisions in the INA without regard to Trump’s America First doctrine, which views immigrants as job stealers rather than recognizes their amazing contributions to the US. Immigration lawyers, like the Jedi Knights who ultimately prevail over Darth Vader and his evil empire, must be prepared to challenge adverse decisions stemming from the Policy Memorandum in order to restore fairness and balance in our immigration system.

Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer

RFE is the acronym for Request for Evidence. It is dreaded by immigration lawyers who file H-1B visa petitions and other applications for immigration benefits. The RFE is essentially a challenge by the immigration agency, United States Citizenship and Immigration Services (USCIS), asserting that the applicant does not appear to be qualified for the visa classification, and therefore requests additional information to adjudicate. The time given to respond to an RFE is generally 87 days. The RFE can consist of several pages of objections. Upon receiving it, the immigration lawyer must meticulously strategize a response in conjunction with the client. Responding to the RFE can take several hours, and at times days on end. It requires coordinating with others for an expert evaluation, as well as for corroborative letters from other employers and trade organizations. Although responding to an RFE is part of a routine administrative process, it feels like one is writing a brief to an appellate court. There is a lot of tension for both the lawyer and the client. If the response to the RFE cannot be overcome in the eyes of a faceless bureaucrat in a remote immigration service center, the petition is denied. The consequences can be drastic. The foreign national beneficiary falls out of status, and may have to leave the United States with family in tow. If the case was filed under the H-1B cap, filing a new one will not be possible until the employer waits for H-1B cap filing period next year, and then too there is no assurance that the H-1B will get selected under next year’s lottery.

It is not a surprise, therefore, that when the Administration does not favor a particular visa, the RFE rate increases. A case in point is the H-1B visa that has become the favorite whipping boy over several administrations. An article in Reuters by Yeganeh Torbati entitled “Trump administration red tape tangles up visas for skilled foreigners, data shows,” where I have been quoted, brilliantly shines the torch on the dreaded RFE and how it is used to distort a visa program even though this was not the intention of Congress. This article has made the RFE a household name. What the government cannot change through Congress or by amending the rules through notice and comment, it does through the RFE. If it wishes to bring about a new policy, such as insisting on the employer demonstrating an employer-employee relationship, or as seen more recently under the Trump administration, insisting on higher wages under the H-1B visa, it does so through the RFE. Even if there be no legal basis for insisting that only one who is paid more than an entry level wage can qualify for the H-1B visa, the administration tries to bring about this change through the RFE. To get a better understanding of the recent RFE trend based on entry level wages, read my prior blog H-1B Entry Level Wage Blues.

The following extract from the Reuters article is worth reproducing:

The Trump administration is making it more difficult for skilled foreigners to work in the United States, challenging visa applications more often than at nearly any point in the Obama era, according to data reviewed by Reuters.

The more intense scrutiny of the applications for H-1B visas comes after President Donald Trump called for changes to the visa program so that it benefits the highest-paid workers, though he has not enacted any such reforms.

Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.

The challenges, which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported.

The trend is likely to cheer supporters of Trump’s hardline stance on immigration. They say visas for skilled foreigners undercut American workers by replacing them with low-paid employees shipped in from abroad. But major tech companies, universities and hospitals contend the visas allow them to fill highly specialized jobs for which there are sometimes few qualified Americans.

H-1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Microsoft (MSFT.O), Amazon (AMZN.O), Google (GOOGL.O), Apple (AAPL.O), Intel (INTC.O), Oracle (ORCL.N) and Facebook (FB.O) were heavy users of H-1B visas in 2016, according to USCIS data.

The USCIS inquiries typically challenge the basis of the original petitions and assert that the employers do not qualify for the visas. Employers and their lawyers must then provide further evidence to prove their need and eligibility for the visas.

To be sure, the Obama administration also issued a large number of H-1B challenges – nearly 59,000 – from January through August 2016, and a similar number in 2015.

Immigration attorneys have for years complained about redundant and burdensome challenges to high-skilled employment visas. But they say they are seeing a new trend in the Trump era.

In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

“One way to have an immigration policy that’s consistent with the policy that’s been articulated by the Trump administration is to put more scrutiny on H-1B cases,” said Cyrus Mehta, a New York-based immigration attorney.

 You can continue to read the entire article here.

It is no accident that the issuance of 85,000 RFEs between January 1 and August 31, 2017 on H-1B visa petitions, coincided with Trump’s America First policy that got crystalized in the Buy American Hire American Executive Order. While not official, it is widely believed that the goal of the Trump administration is to curb legal immigration. Since it is difficult to meet this objective through Congress, the Administration has resorted to the issuance of RFEs on the spurious and legally unsustainable ground that a person who is offered a Level 1 wage cannot be classified for an H-1B visa. A spate of RFEs were also issued during the Obama administration on H-1B visas, after the issuance of the Neufeld Memo on January 8, 2010, which set forth the standards for determining an employer-employee relationship under 8 CFR 214.2(h)(4)(ii). However, those RFEs were issued against IT consulting firms whose business models were to place H-1B workers at third party client sites. The RFEs being issued under the Trump administration seem to curb the entire H-1B visa program.

The current trend in RFEs on H-1B visas do not just challenge the Level 1 wage, but also whether the position qualifies as a specialty occupation. The RFE also questions the beneficiary’s maintenance of F-1 status under Curricular Practical Training challenging whether the CPT constituted an integral part of the program. At times, evidence is also requested to establish that the company is doing business as stated in the H-1B petition. Many RFEs also challenge the employer-employee relationship under the Neufeld Memo. Even if the H-1B worker is not working at a client site, the RFE still asks for proof that there is sufficient work to employ the H-1B worker in the specialty occupation at the employer’s place of business. Although there has been a general upswing in the issuance of RFEs, H-1Bs appear to be getting hit the hardest.

When such an RFE is received, one should take a deep breath and respond appropriately. Imagine yourself feeding the beast in order to tame it or make it go away. If you feed the beast well, it will go away satisfied. If you do not feed it well, it will still be hungry and will come back for more. Respond to every issue raised in the RFE even if you believe that you submitted the evidence previously. If there is a silly request, still respond. For example, RFEs often ask for a weekly percentage breakdown of the duties listed in the job description. This is a rather flawed and ridiculous request, as it is rare that modern employers keep tabs of such breakdowns. Most people occupying professional positions tend to multitask, and are expected to be creative and motivated, thus going beyond what is expected of them in the official job description. You may wish to preface the response by stating that such a request has no bearing to the reality of the job, although a good faith attempt has still been made to approximately breakdown the duties into percentages. Be forewarned that if you feed the beast offal, it will not be satisfied. You need to feed it the choicest bits of meat. For example, the RFE at times erroneously asks that all of the four regulatory prongs to show that the position qualifies as a specialty occupation be satisfied, when only one needs to be satisfied:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

See 8 CFR §214.2(h)(4)(iii)(A).

Thus, petitioners and their attorneys should strategically decide whether to address all four prongs or only one or more of the four prongs. At times, responding to prong 4, when there is also a challenge to the Level 1 wage, could backfire. If you demonstrate that the position is so specialized and unique, then the USCIS can hit back asserting that if the job was “so specialized and complex,” then the position could not have commanded an entry level 1 wage. On the other hand, a petitioner may have no choice but to rely on prong 4 if it is not acknowledged in the Occupational Outlook Handbook that employers always require a bachelor’s degree in the specialty occupation. For example, the OOH with respect to Computer Programmers states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.” It may be risky to rely on the first prong for the position of computer programmer since the OOH acknowledges that some are hired with an associate degree.

Even if the employer normally hires computer programmers with bachelor’s degrees under prong 3, the employer’s requirements in isolation cannot be given deference if a bachelor’s degree is not normally required by all employers, according to the holding in a Fifth Circuit Court of Appeals decision in Defensor v. Meissner, which the USCIS loves to cite in the RFE.

When relying on prong 4, it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex.  It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such testimony if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

In this author’s experience, most RFEs can be overcome and the H-1B visa petition is approved. It is difficult to predict whether this trend will continue under the Trump Administration’s Buy American Hire American Executive Order. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

If the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office, and it is also possible that the USCIS can reconsider the denial before it is sent to the AAO. If the AAO denies, the denial can also be challenged in federal court. In fact, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. It is quite likely that if there is a pattern and practice of denials on the Level 1 wage issue, there will be challenges in federal court that will review the case with a different lens from the USCIS or AAO.

There was a time when it was thought that RFEs issued under the Neufeld Memo were insurmountable. Soon, upon meticulously addressing those RFEs, employers and their lawyers were able to overcome the objections and get an H-1B approval by establishing the employer-employee relationship. Likewise, there are even stronger arguments to demonstrate that the mere offering of a level 1 wage does not disqualify a foreign national form H-1B classification, which should hopefully overcome the recent spate of RFEs.

Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform

On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier each year.

Congress provided for a one time increase in FY 2017 through section 543 of the Consolidated Appropriations Act of 2017, signed by President Trump,  which allows the Department of Homeland Security and the Department of Labor to increase H-2B visas this fiscal year based on a complex formula. As a result, the DHS and DOL increased the H-2B cap by 15,000 on July 19. The long sought for increase is too little and is also too late as the 2017 year will be ending by September 30, 2017. The temporary rule also places an onerous standard. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request for this fiscal year may file under this one-time increase in the H-2B cap.

A day later, on Thursday, July 20, President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. Contrary to media reports, Trump’s businesses sought these H-2B visas for the next fiscal year quota and not under the temporary additional 15,000 H-2B increase for the remainder of 2017. Still, it is quite a coincidence that his businesses sought additional H-2B visas when his own administration issued a rule temporarily increasing H-2B visas a day earlier

The DOL that will process and approve these applications reports to Trump. Once the DOL has issued labor certifications, H-2B visa petitions will need to be filed with United States Citizenship and Immigration Services of the DHS. The DHS reports to Trump. Once the USCIS approves the H-2B visa petitions, the foreign workers will apply for H-2B visas at US consulates in their home countries. The US consulates, who will say yea or nay, are under the purview of the Department of State, which also reports to Trump.

If Trump’s business files for H-2B visas under the temporary 15,000 H-2B quota for the 2017 year, they will have to demonstrate “irreparable harm (that is permanent and severe financial loss), if [they] cannot employ H-2B nonimmigrant workers in fiscal year 2017.” It remains to be seen whether Trump’s businesses can credibly make such a case. Will Mar-a-Lago, promoted as the “winter White House”, which is frequently used by Trump to conduct business on behalf of the United States, and to also entertain visiting dignitaries, suffer irreparable harm including permanent and severe financial loss if it cannot bring in cooks and housekeepers on H-2B visas? If the DOL approved the case for Mar-a-Lago under this heightened standard, it would be hard to pass the laugh test. The heightened standard may even be ultra vires the statute, and it may be interesting to see Trump consider challenging a rule made by his own administration!

Trump’s businesses clearly rely on the H-2B visa. His administration temporarily increased the H-2B visa by 15,000 (even though Trump’s businesses have not yet applied for visas under this increase). The government agencies that will more likely approve rather than deny H-2B visa applications all report to Trump. The move to file H-2B visa petitions for foreign workers also defies Trump’s America First rhetoric that intends to provide jobs to Americans over foreign workers. Indeed, these H-2B visas were filed in Trump’s much publicized “Made in America” week. Just as in every other case where Trump has retained his businesses while serving as president, here too there is a clear conflict of interest if his businesses utilize the H-2B visa program. The conflict will be even more staggering if Trump’s businesses use one of the 15,000 H-2B visas under the temporary increase.

Looking at the bright side, Trump realizes the need for foreign workers on H-2B visas to run his businesses. Although H-2B visas are essential, they only represent a narrow slice of the pie. If Trump does not want this to appear as a conflict of interest, and he is already being accused of being the most conflicted president in modern history, he should view immigration in the same way that he views the H-2B visa program for his businesses. Just as his businesses benefit from foreign workers, so would other businesses as well as the US economy through an expansion of visas. If his businesses cannot hire foreign cooks and housekeepers, the business will not run as profitably and other American workers cannot be hired to manage the H-2B workers. Therefore, the hiring of foreign H-2B workers can create more jobs for Americans. Foreign workers, rather than replacing domestic workers, compliment them. It is this complementariness between American and foreign workers that keeps businesses ticking and profitable.

There are many businesses that are crying out for higher skilled professional H-1B workers. The H-1B visa program is also annually capped at 65,000, with an additional 20,000 H-1B visas for those who have graduated with advanced degrees from US institutions. There is no flexibility to add another 15,000 H-1B visa numbers as with the H-2B visa program. Only Congress can raise the limit, but Trump can persuade Congress to do so. It makes no sense for our universities to educate and graduate top notch foreign students, who then cannot work in the United States because of an arbitrary H-1B cap. If they are forced to return to other countries, they will compete with the United States instead of contributing to it.  US based global corporations must also be given access to tap into pools of global talent so that they can remain competitive, which in turn will benefit consumers in the United States – and ultimately create more jobs for Americans.

There are also entrepreneurs who would love to start up innovative companies in the United States, but there is no startup visa. Instead, the Trump administration just shelved the entrepreneur parole rule that was promulgated by the prior Obama administration. In a podcast where Professor David Hsu of Wharton and I were the guests, we both wondered why Trump really needed to put this rule on ice. It would have benefitted a small group of entrepreneurs, as the threshold of receiving a $250,000 investment was high, but the upsides to the United States could have been tremendous. If one of these foreign entrepreneurs succeeded and his or her startup became a Google, it would result in a paradigm shift in terms of job creation and benefitting US competitiveness. A lot of immigrants have dreams and they want to start their own business and make it big in the U.S. The rule provided one pathway for immigrants to do so, and by not having it and freezing it, we are being less competitive. America needs to realize that it is not the only game in town. There are other countries that want to compete, and we need to be up there — and we are not, unfortunately, by freezing this rule.

In the podcast, now posted on Knowledge@Wharton, Professor Hsu noted that countries like Canada, France and Argentina have provisions that lower the barriers for immigrant entrepreneurs. Immigrants make up about 12% of the U.S. working population, he added. Among STEM (science, technology, engineering and math) workers, immigrants make up 24% of bachelors and 47% of doctorates, he continued. “So [immigrant entrepreneurs] are punching above their weight in the talent pool for the workforce that we desire in the U.S.,” he said. He pointed to one much-cited statistic: foreign-born entrepreneurs make up about half the founders in the so-called “billion dollar club” of startups that are worth at least a billion dollars each.

President Trump ought to also pay attention to the plight of skilled workers who are caught in the employment-based immigrant visa backlogs, mainly those born in India and China. Eliminating the per country limits or not counting derivative family members would go a long way in alleviating their plight, some of whom are trapped in decades long backlogs. Once they get their green cards, they too will be able to unleash far more dynamism in the US economy.

Finally, even undocumented workers are contributing to the United States. Let’s first start with Dreamers who have received work authorization under the Deferred Action for Childhood Arrivals (DACA) program. I have personally seen my own clients embark on successful professional careers after they received DACA authorization, and thus contribute to their fields and the US economy. At this time, DACA seems to be imperiled. It would be a tragedy if young people with a bright future are deported. Other undocumented workers also aspire to do well for themselves and their families. Deporting DACA recipients could result in a loss of $433.4 billion to our GDP besides being politically unpopular. Trump should lend his support to the bipartisan DREAM Act of 2017. One simple way for the US economy to achieve a 4% growth rate, as President Trump desires, is to take in more immigrants. Adam Ozimek and Mark Zandi at Moody’s Analytics, an independent economics firm, estimated for ProPublica that for every 1 percent increase in U.S. population made of immigrants, GDP rises 1.15 percent. Therefore, a simple way to get to Trump’s 4 percent GDP bump is to take in about 8 million net immigrants per year.

All this might be wishful thinking in the age of Trump, who got an electoral college victory largely because of his rhetoric against immigrants as job stealers and criminals. Trump desires to erect a big wall. He has also imposed a travel ban against countries with mainly Muslim populations. At the same time, Trump has realized the need for the H-2B visa so that his businesses can run more profitably. He obtained the forbidden fruit by raising the H-2B limit from 66,000 to 81,000, which he could do as president of the United States. He also wishes to create more jobs in the United States. What better way to do that is for Trump to realize that more immigration is consistent with his goal for creating more American jobs. Trump changes his mind all the time. At one point, he was against NATO and China, but he is not so today. He should also change his mind about immigrants and immigration, especially now that he has felt the need for H-2B visa workers to benefit his own businesses.

EB-5 Green Card, Ethics and Trump

The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump!

A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects through his son in law, Jared Kushner. Qiaowai  is a Chinese agency that acts as an intermediary between Chinese EB-5 investors and EB-5 projects, including the Kushner EB-5 project called One Journal Square in Jersey City. Qiaowai has touted this project’s close links to President Trump.  When Qiaowai did a road show in China recently, Nicole Kushner Meyer, Jared Kushner’s sister, was promoted as the event’s “heavyweight honored guest”.  According to the New York Times, Ms. Meyer told prospective investors that the Journal Square development project “means a lot to me and my entire family,” and that her brother served as chief executive of Kushner Companies before leaving the company to work for the president. Qiaowai’s founder, Ding Ying, has boasted about being close to Trump. Its website stated, “The fact that Ms. Ding has once again been invited to attend a presidential inauguration shows that the U.S. Congress values and approves of the Qiaowai group.” The US Immigration Fund, is the Regional Center promoting this project in the United States.

This close connection between an EB-5 project, the foreign migration agency, the Regional Center and Trump has resulted in a barrage of criticism as it once again brings up the specter of conflicts of interest. There has already been widespread concern about Trump’s businesses violating the Emolument Clause of the Constitution. At the same time, there has been scant commentary on the dilemma that such conflicts involving Trump and his family members pose for the immigration lawyer who represent EB-5 investors. Must the immigration lawyer, when providing a list of viable EB-5 projects that have resulted in green cards for the investor, now also recommend projects of the Kushner family because of their close proximity to President Trump? While an immigration lawyer should not be acting as an investment advisor, unless licensed, an immigration lawyer may still conduct “immigration due diligence” on behalf of the client. The immigration due diligence assesses the viability of the project, not with regard to whether it will deliver a rate of return, but from the perspective of whether the investor has a reasonable chance of getting the green card. Such diligence includes evaluating the past I-526 approvals through the project and whether the project will create the requisite 10 indirect jobs per investor to satisfy the EB-5 statutory requirement. It also includes whether the project is in a targeted area that qualifies for the $500,000 investment, whether the investment capital is at risk, the investor’s place in the queue regarding job allocations and a host of other considerations that are unrelated to investment advice. Conducting such immigration diligence is part of the immigration attorney’s ethical obligation to be competent under ABA Model Rule 1.1, which provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

The immigration lawyer must also consider other ethical rules, besides the duty of competence, when representing EB-5 investors:

Rule 1.2 addresses the scope of representation and the allocation of decision-making authority. According to this allocation, the client establishes the objectives, and the lawyer controls the means to pursue them.

Rule 1.4 on communication overlaps with 1.2: “A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.”

Rule 1.0 defines informed consent: “The agreement by a person to the proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rule 1.3 on diligence emphasizes the lawyer’s commitment to the client. “A lawyer shall act with reasonable diligence and promptness in representing a client.” The first comment to Rule 1.3 expands on this statement. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

As part of the lawyer’s competent representation and other ethical considerations on behalf of a prospective EB-5 investor client, must the ethical lawyer factor into consideration the EB-5 project run by the Kushner company due to its close relationship to President Trump? This is especially true when an intermediary such as a foreign migration agency in China has enticed the client to invest in a project that is close to the president. The lawyer may need to consider whether there is a likelihood of such an EB-5 project being treated more favorably, for example, by receiving less scrutiny with respect to its job creation plan, thus increasing the chances of a green card for the client? Hopefully, the answer should be “No,” but in the age of Trump, expectations have been defied and turned upside down many times over. In the not too distant past, then USCIS Director Mayorkas was investigated for appearing to show favoritism for EB-5 projects that had connections to Hillary Clinton’s brother and Senator Reid. Although Director Mayorkas did not face any sanction at the conclusion of the investigation, in an ideal world, an EB-5 project’s connection to Trump or his family ought not to matter. Both the financial advisor and immigration attorney should independently evaluate the project without regard to any political connections. By the same token, even the USCIS should independently evaluate the project, without regard to whether it is connected to a close family member of the president. It is also worth noting that the success or failure of an EB-5 application depends, not so much on the project, but on whether the investor can demonstrate the source of funds. In other words, is the investor able to demonstrate he or she was the owner of the funds from the very beginning? If the investor cannot demonstrate that he owned the funds, as opposed to an uncle depositing the money in the investor’s bank account, the EB-5 application will fail regardless of the strength of the EB-5 project. Therefore, the immigration lawyer can ethically advise that the success or failure of an investor’s EB-5 application may have nothing to do with how connected it is to the president.

Still, Flaubert said, “There is no truth. There is only perception.” If an investor hears that someone who invested in an EB-5 project connected to the Trump name got approved before she did in another EB-5 project, there will always be this lingering doubt in the mind of that investor. While Trump and his family members may yet be unaffected by their conflicts of interest, immigration attorneys have been left scratching their heads when representing EB-5 investors whether to ask clients to consider EB-5 projects close to Trump. Of course, while we are all witnessing a breathtaking compromise of ethics at the presidential level, it still behooves a lawyer to comply with the ethical rules when representing EB-5 investor clients. It is quite often the case that a foreign migration agent in China, such as Qiaowai, will hire the immigration lawyer to prepare and file EB-5 applications on behalf of its clients. Foreign migration agents play a crucial role in assisting the investor in assembling the documentation to demonstrate lawful source of funds, assisting in communications and translations and monitoring the statuses of all processes and filings of the investor. Still, as New York State Bar Ethics Opinion 1116 recently stated, it is imperative that the lawyer maintain her independence from the migration agent and that the lawyer’s judgment not be compromised. Therefore, if the migration agent has steered the investor into an EB-5 project with a close connection to Trump, it is incumbent on the lawyer to still maintain professional independence and to ensure that the lawyer’s judgment has not been compromised. The lawyer may wish to advise the client that the foreign migration agencies’ claims may be mere puffery.  If the lawyer accepts referrals from a foreign migration agent knowing that the investment selected by the agent will not be in the client’s best interest, the lawyer may be conflicted and must get informed consent from the EB-5 client under Rule 1.7(b). The client must acknowledge that the lawyer has a relationship with a foreign migration agent who may be steering the client to a project that may ultimately not be in the client’s best interest. Under no circumstances may a lawyer pay a referral fee to the foreign migration agent. If the foreign migration agent insists that the referral fee is for payment for expenses for services it provides, those services and expenses have to be identified and disclosed to the EB-5 investor client and should not cost more than services that could be found elsewhere.

Trump can remain in office for four years, and if he wins reelection, for a maximum of eight years, unless he is impeached before that! While Trump and his family members may disregard conflicts of interest and the truth, a lawyer cannot and should not follow suit. The lawyer must stay within the ethical rules – which includes not lying, not being compromised by conflicts and being competent – in order to outlast Trump by many decades.

No Matter How Many New Travel Bans Trump Issues, Maximum Power Does Not Mean Absolute Power

By Cyrus D. Mehta and Sophia Genovese-Halvorson

We have numerous justifiable concerns with the immigration policies of the Trump Administration on behalf of our clients and all Americans who feel that our values are being undermined, especially the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Fortunately, courts across the country seem to agree except for one. Most notable were United States District Judge Robart’s nation-wide temporary restraining order (TRO) of the EO in the Western District of Washington and United States District Judge Brinkema’s Virginia-wide injunction against the EO in the Eastern District of Virginia. Due to these and many other orders, as well as heavy backlash, the Trump Administration has now stepped back and have stated that they will replace the January 27 EO with a new Executive Order sometime next week that will survive judicial scrutiny. It is our view, however, that even this new EO in whatever way repackaged will be unconstitutional under the Establishment Clause of the First Amendment to the U.S. Constitution.

As a reminder, the January 27 EO suspended for 90 days the entry of persons from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, suspended the U.S. Refugee Admissions Program for 120 days, and banned Syrian refugees indefinitely, unless they received an exemption from DHS for being a “religious-minority.” The EO immediately disrupted the lives of thousands of people, from non-immigrants, immigrants, LPRs, and even dual-citizen holders. The first suit against the EO came only a day after its enactment in the Eastern District of New York, which issued an emergency stay that temporarily blocked the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. There were several other injunctions that followed. Then the States of Washington and Minnesota filed suit in the Western District of Washington, requesting, among other things, a restraining order on the ban. Judge Robart issued a nationwide temporary restraining order against the ban, which was affirmed by the Ninth Circuit. Judge Robart’s ruling on the merits is still pending. Meanwhile, Judge Brinkema in the Eastern District of Virginia granted a Virginia-wide injunction against the EO, citing specifically to the Establishment Clause.

President Trump continues to argue that the President has extensive powers granted to him under the Immigration and Nationality Act (INA) § 212(f), 8 U.S.C. § 1182(f), and proffers that the judiciary cannot exercise jurisdiction over an EO due to the plenary powers doctrine. In relevant part, INA § 212(f) states that,

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

However, as Judge Brinkema rightfully pointed out in her decision, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). In her analysis, Judge Brinkema reaffirms that the U.S. Constitution is the supreme law of the land, and that no one, not even the President, can violate its terms. Citing to landmark cases such as Zadvdas v. Davis, 533 U.S. 678 (2001) (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), among others, she proves this point.

The Ninth Circuit that affirmed Judge Robart’s TRO also provided precedent on the reviewability of the Executive, citing to Boumediene v. Bush, 553 U.S. 723, 765 (2008) (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha, 462 U.S. 919 (1983) (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”). The Ninth Circuit goes so far to say that even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

In short, there is no doubt that Trump’s Executive Orders are subject to review when there is an alleged violation of the Constitution. But what specifically is unconstitutional about Trump’s ban? Or a rewrite of the ban even if it does not apply to lawful permanent residents or non-immigrants who have already been in the United States? One indication of the new EO by DHS Secretary Kelly is that it would give time for people to come back in , and would presumably include the same 7 nations whose nationals would be barred from future entries.

The Establishment Clause

The Establishment Clause argument has great merit, and it is the opinion of these authors that this argument will likely prevent Trump from prevailing on even his latest Executive Order, where it is likely he will include even non-Muslim countries, so as to appear non-discriminatory. The Virginia Court, in relevant part, explains that,

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” The Supreme Court has articulated various tests for determining whether that command has been violated. The first such test is that the law “must have a secular…purpose.” “In the past, [this] test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing” one religion over the other. The secular purpose requirement “‘nevertheless serves an important function,’” because “[b]y showing a purpose to favor religion, the government sends the…message to…nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.” This message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavor a particular religion. (internal citations omitted).

(Aziz, at *13-14).

In order to assess whether there was discriminatory intent in the January 27 EO, Judge Brinkema cites heavily to statements made by Trump during his campaign, especially noting that a “Muslim Ban” was a central feature of his platform. She also pointed to post-election and post-inaugural interviews where he speaks about the need to prioritize Christian refugees. She also cites to a particularly intriguing quote by Rudy Giuliani, who stated after the EO’s enactment, that “when [Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’…And what we did was, we focused on, instead of religion, danger—the areas of the word that create danger for us…Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.” Additionally, Judge Brinkema noted that post-hoc statements by DHS Secretary Kelly and White House Chief Counsel proclaiming that this is not a Muslim ban will be given little weight because we are looking to past intent in our analysis.

These statements taken together go to show that the ultimate aim of the Trump Administration is to ban Muslims. Even in light of the new EO, which may or may not include non-Muslim majority countries, these statements cannot be washed away. The intent to ban Muslims is there. The intent to violate the Establishment Clause, without outright saying it, is there. “‘The world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” Aziz, at *15. Trump’s new EO is only being reissued because he and his Administration know it is likely that his January 27 EO is unconstitutional. Essentially, the new EO will be a repackaging of the old. The intent, therefore, remains to ban Muslims. This is the case even if the new EO proposes to ban future entrants. While people with no ties to the US may not have the same constitutional rights as lawful permanent residents, such a person who wishes to visit a US citizen relative or attend a US educational institution could still likely be able to challenge an unconstitutional EO pursuant to Boumediene v. Bush and Hamdi v. Rumsfeld.

Balancing the Government and State’s Interests

Given that plaintiffs can likely prevail on the Establishment Clause argument, the government must prove that its national security concerns are bona fide. This means that the government must present evidence to support its assertions that these EOs are vital for the preservation of national security. Judge Brinkema again notes that in the Virginia case, the government failed to provide any evidence to support their claim. The Ninth Circuit also noted that no evidence had been proffered to point to terrorist threats of nationals from the original seven banned countries. In fact, Judge Brinkema states that the only evidence offered in this regard is the declaration of 10 national security experts who declared that the January 27 EO only serves to make the country less safe. It is possible, though, that a court may follow what the Massachusetts district court in Louhghalam v. Trump did, and grant the President this authority and not find discriminatory intent (although the court rendered this decision to justify not extending the injunction indefinitely, which it did initially, and did not analyze the discriminatory intent).

It is clear to us, and hopefully to a court that hears the new challenge,  that the discriminatory intent will still exist in this new EO, thereby remaining in violation of the Establishment Clause. While it remains unclear if courts will find that this new EO puts forth facially legitimate national security concerns, it will still possess discriminatory intent, specifically banning Muslims, and will fail under the “bona fide” prong put forth in Kleindienst. See also American Academy of Religions v. Napolitano, 573 F.3d 115 (2009).  If the EO is found to possess facially legitimate national security concerns, but also formed in bad faith, it will be up to the courts to decide if these national security concerns have enough muster to overcome constitutional constraints. But history has repeatedly shown that national security concerns have been conveniently and falsely invoked even to deprive US citizens of their rights as with the shameful internment of Japanese Americans.

These national security concerns, in our opinion,  are invalid and cannot even pass the facially legitimate prong. Immigrants and refugees face numerous screenings before being granted admission into the United States. In addition, the immigration process can take years. The government in the January 27 EO proceedings failed to offer evidence that these processes were defective in their ability to screen out security threats. Further, it is unlikely that a terrorist would go through the trouble of filing an nonimmigrant/immigrant petition, only to be vetted several times over, then be subjected to a consular interview, and then still have to make it through Customs and Border Protection. It is an inefficient means to their end. Even attempting to ban prospective entrants who have not had ties with the United States cannot be justified if the ban violates the Establishment Clause. Since Marbury v. Madison, 5 U.S. 137 (1803),  the Supreme Court has recognized that when a government action is in conflict with the Constitution, it is for the judiciary to say what the law is. This is the wonderful balance that preserves American democracy. White House advisor Stephen Miller was wrong to assert that an unelected judge cannot check the President’s power in the area of immigration. The will of the majority, even in a democracy, cannot trample upon the rights of others. If that happens, the judiciary applies the breaks on such abuse of power so as to protect those who are trampled upon by the majority.

But most importantly, the majority of people seeking to temporarily visit or immigrate to the United States are peaceful people. Just because they share a different religion, worldview, or skin tone than some Americans does not mean that they are somehow violent or a threat. In fact, the opposite is true. Immigrants have been critical in the continued advancement of our country. From science and technology, to social ingenuity and progress, immigrants have helped to continue moving our country forward. To equate immigrants or non-immigrants, especially those from Muslim-majority countries with terrorists is not only bigoted, but it is simply untrue. Profiling all people from a specific country cannot serve as a proxy for individualized suspicion and guilt. It is also a sloppy law enforcement technique as an individual who desires to harm the country can evade being part of the profile. There are other smart law enforcement techniques that have been successfully deployed to track and apprehend people who intend to do us harm than profiling all people of a country.

President Trump derives his authority to assert maximum power through the plenary power doctrine, which arose from a Supreme Court case in the late 1800s, Ping v. United States, 130 U.S. 581, that upheld the racist Chinese Exclusion Act. In the 21st century, after the United States has made such strides in civil rights, women’s rights, and marriage equality, there is no longer place for plenary power as a justification to violate the Constitution. Allowing President Trump to assert such maximum power, based on the plenary power doctrine, only takes America back more than a hundred years after all the progress that has been achieved. The plenary power, as asserted in the travel ban EO, also sends a wrong message to the world that America is no longer a welcoming place for people to travel, do business, temporarily work, or to make a permanent home. Being unwelcoming, arbitrary and intolerant is inconsistent with the notion of America as a great nation. On this President’s Day, it is important to reflect whether now is the opportune moment to reassess the plenary power doctrine that was grounded in a racist law whose purpose was to exclude Chinese nationals just as the current or future EO is aimed against banning Muslims. It is high time for the courts to once and for all recognize the supremacy of the Constitution over the president’s absolute power.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.”  This claim has, deservedly, been the subject of much ridicule.  As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts.  They’re falsehoods.”  Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration.  Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth.  (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals.  As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”.  It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty.  The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal.  They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward.  The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling.  While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance.  Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists.  Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11th hijackers.  (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.)  Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny.  This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq.  The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service.  The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban.  That there was no exemption of such people from the January 27th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism.  The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States.  It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission.  The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism.  Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others.  These injunctions did not come soon enough for all of the innocent victims of the executive order, however.  At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States.  Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently.  That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”.  Since section 101(a)(13)(A) of the INA defines “admission” as  “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry.  That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States.   The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.”  That is, LPRs from the affected countries will be allowed to return to the United States in most instances.  It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order.  The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well).  Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue.  As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.”  Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.”  In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries.  Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.”  Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees.  Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill.  Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support.  Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size.  That they would be relied upon to harm innocent immigrants is unacceptable.